J-A14025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILBERT COLON
Appellant No. 301 MDA 2014
Appeal from the Judgment of Sentence January 15, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004513-2012
BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY JENKINS, J.: FILED MAY 18, 2015
A jury found Wilbert Colon guilty of first degree murder1, third degree
murder2, aggravated assault3, carrying firearms without a license4, and
possession of an instrument of crime (“PIC”).5 The trial court sentenced
Colon to life imprisonment without possibility of parole for first degree
murder, 3½ - 7 years’ imprisonment for carrying firearms without a license
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a).
2
18 Pa.C.S. § 2502(c).
3
18 Pa.C.S. § 2702(a)(1).
4
18 Pa.C.S. § 6106(a)(1).
5
18 Pa.C.S. § 907(a).
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and 16 months’ – 5 years’ imprisonment for PIC. Colon’s sentences for
carrying firearms without a license and PIC both run concurrently with his
first degree murder sentence.6 Colon filed a timely notice of appeal, and
both Colon and the trial court complied with Pa.R.A.P. 1925. We affirm.
Colon raises five issues in this direct appeal, which we re-order for the
sake of convenience:
1. Whether the evidence presented by the
Commonwealth in their case in chief was insufficient
as a matter of law to establish [Colon]’s guilt beyond
a reasonable doubt, given the extremely
contradictory, inconsistent, biased and patently
unreliable testimony of the Commonwealth witnesses
who had a vested interest in the outcome of the trial,
thereby warranting a judgment of acquittal and/or
new trial.[7]
2. Whether the trial court erred and/or committed an
abuse of discretion and/or deprived [Colon] of his
right to due process and/or a fair trial in allowing the
Commonwealth to introduce evidence of a letter or
note purportedly written by [Colon], that was found
in the prison laundry, without proper foundation or
any authentication. Said letter or note was extremely
prejudicial which outweighed any probative value
and should not have been admitted and read to the
jury.
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6
At sentencing, the trial court dismissed the charge of persons not to
possess firearms (18 Pa.C.S. § 6105). Colon’s convictions for third degree
murder and aggravated assault merged with his first degree murder
conviction for purposes of sentencing.
7
One might infer from this language that Colon challenges the weight of the
evidence, but the discussion in his brief makes clear that he challenges the
sufficiency of the evidence. Accordingly, we treat this issue as a challenge
to the sufficiency of the evidence.
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3. Whether the Court erred in allowing the
Commonwealth to violate Colon’s Due Process Rights
and/or rights under the 14th, 5th and 6th
Amendments, specifically, by allowing [Investigator]
Perkins to testify from a police report that was being
used as substantive evidence regarding alleged false
statements made by [Colon], where [Colon] was not
shown the police report, said police report was not
adopted by [Colon] and the report was not a
verbatim recording of [Colon]’s statement to Perkins.
4. Whether [Colon] was denied a fair trial by the
prosecutorial misconduct of the assistant district
attorney, who asked a highly prejudicial and
inflammatory question regarding [Colon]’s failure to
voluntarily come into the police station to speak with
the police under circumstances whereby it can be
reasonably assumed that a jury would naturally draw
an adverse inference from the comment, thereby
violating [Colon]’s 5th and 6th Amendment rights and
warranting a new trial.
5. Whether [Colon] was denied a fair trial by the
prosecutorial misconduct of the assistant district
attorney, who made a highly prejudicial and
inflammatory statement regarding [Colon]’s pre-
arrest silence under circumstances whereby it can be
reasonably assumed a jury would naturally draw an
adverse inference from the comment, in violation of
[Colon]’s 5th and 6th Amendment rights and right to
Due Process, thereby warranting a new trial.
Brief For Appellant, pp. 9-10.
We first address Colon’s challenge to the sufficiency of the evidence.
Our standard of review is well-settled:
[W]hether[,] viewing all the evidence admitted at
trial in the light most favorable to the
[Commonwealth as the] verdict winner, there is
sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable
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doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts
and circumstances established by the
Commonwealth need not preclude every possibility
of innocence. Any doubts regarding a defendant’s
guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn
from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations
omitted).
The following evidence was adduced during trial: at 7:00 p.m on June
15, 2012, two Reading police officers were attending to a domestic call when
they heard several gunshots. N.T. 91-92.8 The officers proceeded on foot to
16th and Cotton Streets, where they observed a number of people running.
Id. at 93, 122. A group of people stood near the victim, Tarik Billups (“the
victim”), who was lying on a porch on Cotton Street. Id. at 93. Officer
Linderman called for medical assistance and found three spent shell casings
near the sidewalk in front of the porch. Id. at 106-107. Billups later died
at the hospital. Id. at 128-29.
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8
The transcript from Colon’s five-day trial is a single transcript with
consecutively numbered pages.
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Another officer at the scene, Officer Shreiner, went to the businesses
located in the area to retrieve any surveillance footage. Id. at 134.
Shreiner retrieved a video from the business located at the corner of 16th
and Cotton Streets called Tack’s Sandwich Shop, which showed some of the
actors involved in the incident both prior to and after the shooting, but not
the shooting itself. Id. at 135, 143.
An evidence technician collected multiple items which appeared to be
connected to the shooting, including a hat taken from the breezeway
between the porches, a blood swab from the porch, a gray sweatshirt found
near the porch, a broken beer bottle found near the porch, and the
aforementioned shell casings. Id. at 146, 156.
Following the shooting, through review of the video and the interview
of an eyewitness, Jenny Matetich, the police determined that the victim and
multiple other individuals (Brandon Harrison, Antonio Kreiser, Luis Cordovez,
Jalil Jacquez, and an unknown black male) were involved in an altercation
prior to the shooting. Matetich, who was unloading items across the street,
witnessed a brawl between the victim, Kreiser, and the unknown black male,
and she heard gunshots soon thereafter and looked away. Id. at 226-227.
Matetich also saw one individual who was wearing a gray sweatshirt prior to
the shooting but not after the shooting. Id. at 227.
Investigator Perkins interviewed Harrison, Kreiser, Cordovez, and
Lamont Gore, who was a friend of the victim and a resident of Cotton Street.
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Gore stated that the victim was visiting his house when he heard a group of
men yelling for the victim to come outside. Id. at 523. Gore identified this
group as Colon, Harrison, Kreiser, Cordovez, Jacquez and the unknown black
male. Id. at 524. Gore stated that Kreiser approached the victim yelling and
heard Colon, who was wearing a gray sweatshirt, say: “I have the hammer
on me”, which Gore took to mean a firearm. Id. at 527. Kreiser threw a
bottle at the victim, and a brawl “erupted.” Id. at 528. The fight moved
from Gore’s porch across another porch and ended with the victim being
knocked down onto a third porch. Id. at 531-532. As the fight wound
down, the only individual on the porch was the victim, who was beginning to
get back up. Id. at 535. At that point, Gore saw only Colon, who was no
longer wearing the gray hooded sweatshirt, run onto the porch, shoot the
victim three times, and flee down a breezeway. Id. at 536.
Perkins also took statements from Cordovez, Harrison, and Kreiser
(who all subsequently testified to these facts at trial). All three stated that
they met at a house on Cotton Street and walked down to the Cotton Gin in
order for Kreiser to buy a beer. Id. at 295. Kreiser stated that after he
exited the bar, he observed that Colon had left the group and had gone back
up the street. Id. at 329. Cordovez and Harrison, as well as the video,
corroborate this fact. Kreiser observed Colon up the street across from
Gore’s house, arguing with the victim. Id. at 329. As the rest of the group
walked towards Gore’s house, Colon ran at the victim, who went back into
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Gore’s house. Id. at 329. The victim exited Gore’s house and had words
with the group about an altercation the night before. Id. at 330. At this
point, Kreiser threw the beer that he had just purchased at the victim, then
ran at him and attempted to hit him. Id. at 331-332. The scuffle then
moved across the porches and eventually ended with Kreiser dusting himself
off and the victim starting to get up. Id. at 334. Kreiser stated that as he
was getting up, he heard gunshots and saw Colon shoot the victim. Id. at
336. Kreiser fled the scene but spoke to Colon a few days later, at which
time Colon told him that “he [Colon] would take the rap for this because
that’s the type of man he is.” Id. at 344. Harrison and Cordovez stated that
only Colon was on or near the porch when the victim was shot. Id. at 282,
436.
Investigator Perkins also took a statement from Colon after he was
brought to the police station and read his Miranda warnings. Colon stated
that the other individuals went up the street first before Colon did. Id. at
652. Colon denied wearing a gray hooded sweatshirt that day, Id. at 657,
but he admitted leaving for New York soon after the incident. Id. at 654.
Colon did not testify during trial.
An autopsy showed that the victim died from two gunshot wounds
which entered from his right side, perforated his lung and lodged in his
spinal vertebrae. Id. at 572-573. A trained firearms expert, Corporal
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Garrett, examined the two bullets removed from the victim’s body and
testified that they were fired from the same firearm. Id. at 185.
Colon’s DNA was found on the gray, hooded sweatshirt recovered at
the crime scene. Id. at 564. Colon’s DNA was not found on the hat
recovered at the crime scene; only the victim’s DNA was on that item. Id.
at 565.
During his investigation, Investigator Perkins received a letter seized
from a laundry bag at the Berks County Prison. Id. at 705-706. The letter
stated that “they hitting me with murder 1 + 3”, referred to Harrison’s and
Kreiser’s cooperation with the police, stated where to find them, and
instructed that “they gotta go.” Id. at 606; see also Exhibit C-38 (note
stating “I think that nigga Gun Play dropped a statement for sure,” “they
don’t got da gun or none of dat[,] just these niggas giving up tape on me,”
“tell these niggas out there to get on these niggers tops[.] But H and Gun
Play gotta go, no if, ands or buts about it, fam, they gotta go”). The letter
was removed from the pocket of a shirt which was inside a color-coded
laundry bag that belonged to cell J-212, and a tag on the bag had the word
“Gutter” written on it. Id. at 590. “Gutter” is a known nickname for Colon.
Id. at 278. At the time the letter was found, Colon was incarcerated at the
Berks County Prison in cell J-212. Id. at 604.
Lastly, Investigator Perkins was able to ascertain through the use of
the Pennsylvania State Police records check that Colon did not have a license
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to carry a concealed firearm because he was ineligible to have one. Id. at
659. At trial, Colon stipulated to the fact that he does not have a permit to
carry a concealed firearm. Id. at 661.
To prove first degree murder, the Commonwealth must introduce
evidence which establishes beyond a reasonable doubt that a human being
was unlawfully killed, the accused bears responsibility for the killing, and the
accused acted with malice and a specific intent to kill. Commonwealth v.
Briggs, 12 A.3d 291 (Pa.2011); 18 Pa.C.S. §§ 2501, 2502(a). An
intentional killing is a “[k]illing by means of poison, or by lying in wait, or by
any other kind of willful, deliberate, and premeditated killing.” 18 Pa.C.S. §
2502(d). The Commonwealth may prove intent through wholly
circumstantial evidence, such as evidence showing the use of a deadly
weapon by the accused on a vital part of the victim’s body. Briggs, 12 A.3d
at 306. Likewise, malice may be inferred from the use of a deadly weapon
on a vital portion of the victim’s body. Id. at 307. The definition of a deadly
weapon includes “[a]ny firearm, whether loaded or unloaded.” 18 Pa.C.S.
§2301; Commonwealth v. Scott, 752 A.2d 871, 874 (Pa.2000).
At the outset, we note that Colon waived his challenge to the
sufficiency of the evidence relating to first degree murder. Without any
citation to the record, Colon argues that “the only evidence in the
Commonwealth’s case in chief that could arguably establish the Defendant’s
guilt, comes from [three] biased individuals with the greatest motive and
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reason to lie about the shooting to implicate another.” Brief For Appellant,
p. 24. Colon, however, fails to identify specific instances of lying by
Commonwealth witnesses. Absent pertinent citations to the record, Colon
has waived this argument. Commonwealth v. Johnson, 985 A.2d 915,
924 (2009) (appellant waived issue on appeal where he failed to present
claim with citations to relevant authority or develop issue in meaningful
fashion capable of review).
Even if Colon preserved this argument for appeal, the evidence,
viewed in the light most favorable to the Commonwealth as verdict winner,
clearly establishes Colon’s guilt. The evidence establishes that Colon shot
Billups multiple times. An autopsy determined that the cause of death was a
gunshot wound to Billups’ chest than perforated his lung and lodged in his
vertebrae. In addition to eyewitness testimony identifying Colon as the lone
gunman, ballistics testing confirmed that only one firearm was used in
Billups’ murder. Gore’s testimony established that prior to the shooting,
Colon yelled at the victim that he had “the hammer,” and Billups fled into
Gore’s house after hearing this. Substantial post-event circumstantial
evidence points towards Colon as having killed Billups. Colon told Kreiser
that he, Colon, would “take the rap” for the murder. Colon also gave a
statement to Investigator Perkins which contradicted the undisputed video
evidence as well as the testimony of all of the other witnesses, showing his
attempt to mislead the police from his own guilt. In addition, the letter
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retrieved from Colon’s prison laundry shows that he intended to dispose of
the witnesses against him, evidencing his consciousness of guilt.
Contrary to Colon’s argument, the evidence against him did not consist
only of testimony from allegedly biased eyewitnesses. Much of the evidence
was forensic in nature, and other evidence came from sources other than the
eyewitnesses, such as the letter found in Colon’s prison laundry. And while
Colon might be skeptical about the eyewitnesses’ veracity, we must construe
all evidence of record, including their testimony, in the light most favorable
to the Commonwealth. Under this standard, the evidence of first degree
murder plainly was sufficient.9
The evidence also was sufficient to prove Colon’s guilt for PIC and
carrying firearms with a license. PIC requires proof beyond a reasonable
doubt that he possessed an instrument of crime with intent to employ it
criminally. 18 Pa.C.S. § 907(a). Section 907(d) defines an instrument of
crime as “anything used for criminal purposes and possessed by the actor
under circumstances not manifestly appropriate for lawful uses it may have.”
Viewed in the light most favorable to the Commonwealth, the eyewitness
testimony and the recovered spent shell casings establish Colon’s possession
____________________________________________
9
We need not consider whether there was sufficient evidence of third degree
murder and aggravated assault, because these crimes merged with Colon’s
sentence for first degree murder.
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of an instrument of crime for criminal purposes and his intent to employ it
criminally under circumstances not manifestly appropriate for any lawful use.
The crime of carrying firearms without a license requires the
Commonwealth to prove that the defendant carried a firearm in any vehicle
or carried a firearm concealed on or about his person, except in his place of
abode or fixed place of business, without a valid and lawfully issued license.
18 Pa.C.S. § 6106(a). Construed in the light most favorable to the
Commonwealth, the evidence demonstrates that Colon possessed a firearm
that he used to shoot Colon. Criminal Investigator Perkins confirmed, and
Colon stipulated, that Colon did not have a license to carry a concealed
weapon.
We next address Colon’s argument that the trial court abused its
discretion by permitting the admission of the letter found in a laundry bag
that belonged to Colon’s cell at the county prison. The letter directed that
two trial witnesses against Colon “gotta go”, which the Commonwealth
contended was an order to kill the witnesses. Defense counsel objected to
admission of the letter due to alleged lack of authentication, but the trial
court overruled this objection. N.T. 601-02, 605.
Questions relating to the admission and exclusion of evidence are
within the sound discretion of the trial court and will not be reversed on
appeal absent an abuse of discretion. Commonwealth v. Boczkowski,
846 A.2d 75, 93 (Pa.2004). An abuse of discretion is not merely an error of
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judgment; discretion is abused when the law is overridden or misapplied or
the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the evidence or the record.
Commonwealth v. Snyder, 870 A.2d 336, 343 (Pa.Super.2005).
Pa.R.E. 901 provides: “To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it
is.” Pa.R.E. 901(a). Rule 901 further provides in relevant part: “The
following are examples only--not a complete list--of evidence that satisfies
the requirement: … (4) The appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item, taken together with
all the circumstances.” Pa.R.E. 901(b). Thus, “a document may be
authenticated by circumstantial evidence, a practice which has been
uniformly recognized as permissible.” Commonwealth v. Brooks, 508
A.2d 316, 318 (Pa.Super.1986). Thus,
‘proof of any circumstances which will support a
finding that the writing is genuine will suffice to
authenticate the writing.’ McCormick, Evidence, §
222. The courts of this Commonwealth have
demonstrated the wide variety of types of
circumstantial evidence that will enable a proponent
to authenticate a writing. See e.g.,
Commonwealth v. Nolly, [] 138 A. 836 (1927)
(letters authenticated by contents: facts known only
to sender and recipient); Commonwealth v. Bassi,
[] 130 A. 311 (Pa.1925) (unsigned letter
authenticated by defendant’s nickname written on it,
along with contents indicating knowledge of matters
familiar to both defendant-sender and witness-
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recipient); McFarland v. McFarland, [] 107 A.2d
615, 616 (Pa.Super.1954) (authentication by writer’s
style and diction); Commonwealth v. Gold, [] 186
A. 208, 211 (Pa.1936) (dicta) (circumstantial
evidence authenticating telephone call by recipient’s
subsequent actions would have sufficed to identify
cablegram if offered); Campbell v. Wade, 83
Pa.Super. 415, 418 (1924) (purported author’s
subsequent keeping of appointment arranged in
letter sufficient to authenticate).
Brooks, 508 A.2d at 319; see also Bassi, 130 A. at 311-12 (memorandum
book authenticated by its discovery in a place connected to a party; book
was found in bag in room defendant had occupied with three other men and
contained diagram or sketch showing location of towns and highways in
vicinity of robbery).
“The ultimate determination of authenticity is for the jury. A
proponent of a document need only present a prima facie case of some
evidence of genuineness in order to put the issue of authenticity before the
factfinders.” Brooks, 508 A.2d at 320. “The court makes the preliminary
determination of whether or not a prima facie case exists to warrant its
submission to the finders of fact.” Id.
The record provides ample circumstantial evidence of the letter’s
authenticity. The letter was discovered in a laundry bag that belonged to
Colon’s prison cell. Attached to the laundry bag was a tag inscribed with
Colon’s nickname, Gutter. The letter referred to matters familiar to Colon,
including the murder charges against him, Harrison’s and Kreiser’s
cooperation with the police (“giving up tape on me”), and the fact that the
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police did not have the gun. The trial court thus acted within its discretion
by finding prima facie evidence of the letter’s authenticity and submitting it
to the jury for consideration.
In his next argument, Colon alleges a violation of his Fifth, Sixth and
Fourteenth Amendment rights because the trial court permitted Investigator
Perkins “to testify from a police report that was being used as substantive
evidence regarding alleged false statements made by [Colon], where [Colon]
was not shown the police report, said police report was not adopted by
[Colon] and the report was not a verbatim recording of [Colon]’s statement
to Perkins.” Brief For Appellant, p. 25. Colon fails to explain why this ruling
violated Colon’s Fifth, Sixth or Fourteenth Amendment rights. His brief
merely argues that this testimony violated Pennsylvania’s evidentiary law
concerning prior inconsistent statements. Id. (citing Commonwealth v.
Lively, 610 A.2d 7 (Pa.1992)). Thus, Colon has waived this argument. See
Johnson, 985 A.2d at 924 (argument waived where appellant fails to
develop issue in meaningful fashion capable of review).
We review Colon’s fourth and fifth arguments together, because they
concern the same subject matter. Colon asserts that the trial court should
have granted a mistrial based on two questions by the prosecutor to
Investigator Perkins that referred improperly to Colon’s pre-arrest silence.
The prosecutor’s first question was: “Did [Colon] come in to see you
voluntarily?” Investigator Perkins answered: “No.” N.T. 634. Trial counsel
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objected to this question and moved for a mistrial. Id. Although the trial
court did not decide the motion for mistrial on the record, it implicitly denied
this motion by proceeding with trial the following day. The second question
took place at the resumption of trial the following day. The prosecutor
asked: “And can you tell us, Investigator Perkins, did [Colon] come into City
Hall or to the Reading Police Department as the other individuals whom you
interviewed did?” Investigator Perkins answered, “No, he didn’t.”10 Id. at
649. The trial court later stated in its Pa.R.A.P. 1925 opinion that the
prosecutor’s comments were “inflammatory” but “did not rise to the level
which would necessitate a mistrial.” Trial Court Opinion, pp. 6, 7.
For purposes of this appeal, we will assume that the prosecutor
engaged in misconduct by referring to Colon’s pre-arrest silence through
questions to Investigator Perkins about whether Colon came to the police
station voluntarily. Commonwealth v. DiNicola, 751 A.2d 197, 201
(Pa.Super.2000) (defendant’s pre-arrest silence may not be admitted into
evidence when defendant does not testify at his own trial). We conclude,
however, that this conduct does not require a new trial.
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10
Although Colon did not renew his request for a mistrial after the second
question, renewal was unnecessary. Cf. Schwegel v. Goldberg, 228 A.2d
405, 408 (Pa.Super.1967) (where litigant objected to original question, but
did not renew his objection after answer, judge's action in admitting
testimony was ruling adverse to litigant, and such ruling obviated need for
taking additional exception).
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We evaluate prosecutorial misconduct under a harmless error
standard. Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa.Super.2009).
“In reviewing prosecutorial remarks to determine their prejudicial quality,
comments cannot be viewed in isolation but, rather, must be considered in
the context in which they were made.” Id. Our review of prosecutorial
misconduct requires us to evaluate whether a defendant “received a fair
trial, not a perfect trial.” Id. The remedy of a mistrial is an extreme
remedy required only when one or more incidents of prosecutorial
misconduct are “of such a nature that its unavoidable effect is to deprive the
appellant of a fair and impartial tribunal.” Id. But where properly admitted
evidence of guilt “is so overwhelming and the prejudicial effect of the error is
so insignificant by comparison that it is clear beyond a reasonable doubt that
the error could not have contributed to the verdict, then the error is
harmless beyond a reasonable doubt.” Commonwealth v. Miles, 681 A.2d
1295, 1302 (Pa.1996).
Here, multiple eyewitnesses testified that Colon shot the victim during
a brawl that began after Colon and other males challenged the victim to
come outside of Gore’s house and fight. The victim died from two gunshot
wounds. Colon fled to New York after the shooting. Subsequently, following
his arrest, he wrote a letter demanding the murders of two individuals who
were cooperating with the Commonwealth against him. Given this
overwhelming evidence of guilt, the prosecutor’s two isolated questions on
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two separate days to Investigator Perkins did not have the unavoidable
effect of depriving Colon of a fair and impartial jury.
For these reasons, we affirm Colon’s judgment of sentence.
Judgment of sentence affirmed.
President Judge Emeritus Bender joins in the memorandum.
Judge Strassburger concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2015
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